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Why did Harper wade into the Marc Nadon controversy?

From the Maclean’s archives: The real question beneath the Supreme Court legal dispute

In a landmark decision sure to send out political shockwaves, especially in the Quebec provincial election, the Supreme Court of Canada Friday morning blocked Prime Minister Stephen Harper’s appointment of Marc Nadon to the country’s top court. The eligibility of Nadon, a 64-year-old semi-retired federal court judge, had been challenged. This story from early this year probed the key question: Why would Harper risk trying to appoint Nadon in the first place?

Until a few months ago, Stephen Harper had an unblemished record for naming judges to the Supreme Court of Canada without sparking any serious controversy. Of the nine seats on the country’s top court, the Prime Minister filled five, as judges retired between 2006 and 2012, and the legal community mostly nodded approvingly at his choices. Some law professors, predictably, detected a rightward shift after years of Liberal picks, but the credentials of Harper’s selections were hard to dispute. Then came his appointment last fall of Justice Marc Nadon. The initial reaction among veteran court-watchers was frank surprise: The partly retired Federal Court of Appeal judge, 64, a specialist in maritime law, of all things, hadn’t made it onto anybody’s short list for the Quebec vacancy.

Except the one that counted. But Harper had done more than elevate a relatively obscure judge. The Supreme Court’s three Quebec members must, by law, be appointed from the province’s court of appeal or superior court, or come “from among the advocates of that province,” meaning lawyers who work in Quebec. The federal government argues that, having practised law in Montreal for two decades before joining the federal court in 1993, Nadon still fits the bill as a Quebec advocate. The Quebec government, however, challenged that interpretation. Arguments in the clash were to be heard this week in the Supreme Court, which has been put in the unprecedented position of having to rule on who gets to crack its own rarefied lineup.

Beneath the legal dispute over Nadon’s eligibility, though, lies the more politically fraught mystery of why Harper waded into this controversy in the first place. What was it about this particular judge that attracted the admiring attention of Conservative insiders? The most intriguing possibility, often noted by lawyers commenting on Nadon’s otherwise low-key history on the bench, was his dissenting opinion in a 2009 federal appeal court ruling on Omar Khadr, the Canadian then being held in the U.S. military detention centre in Guantánamo Bay. In that split decision, two judges ruled that Canadian government officials had violated Khadr’s rights by interviewing him at the base and sharing what he said with American authorities, and that Ottawa should press for Khadr to be sent home to Canada. Nadon disagreed, essentially advising the courts to stay out of foreign policy. “Whether Canada should seek Mr. Khadr’s repatriation at the present is a matter best left to the executive,” he wrote.

There can be little doubt that Nadon’s conservative restraint must have gone over well with the Harper government. But would that single dissent—no matter how noteworthy—have been enough to vault him into contention, among better-known Quebec judges who also appear ideologically acceptable to Conservatives? The process for vetting Supreme Court candidates is so opaque that no outsider can say for sure what factors weighed heavily. What shouldn’t be overlooked, however, is that during the period when Nadon was being considered and finally chosen, the Prime Minister had a new top legal aide—a key adviser who happens to have been, before joining Harper’s political staff, among the most outspoken opponents of anyone sympathetic with Khadr’s plight.

Howard Anglin joined the Prime Minister’s Office last spring with the title “senior adviser, legal affairs and policy,” after a stint as chief of staff to then-citizenship and immigration minister Jason Kenney. But Anglin was still an associate with the Washington law firm Wiley Rein when, on May 27, 2008, he testified in Ottawa on his own behalf before a parliamentary subcommittee looking into the Khadr case. He told the MPs that the controversial U.S. military commissions convened to try accused terrorists held at Guantánamo Bay were allowed under international law, rejecting the claims of those who said they violated the Geneva Conventions. As well, Anglin said Khadr could legally be charged and tried under the U.S. military process, even though he was only 15 when he was captured by U.S. forces in 2002 in Afghanistan after a firefight in which he allegedly killed an American soldier.

His staunch position before the subcommittee prompted a derisive reaction from some opposition MPs. “There is probably no country in the history of this world more committed to the preservation of individual liberty than the United States of America,” Anglin said, then added, “I hear sniggers on that point, and I can address them, I can address them.” By then, he was steeped in the legal arguments surrounding the Guantanamo detainees as few other Canadian legal experts. He was was one of four lawyers at his Washington firm who worked on a brief filed with the U.S. Supreme Court in 2007, supporting then-president George W. Bush’s policies that severely limited the rights of the detainees. Wiley Rein submitted that brief on behalf of three conservative groups—the Foundation for Defense of Democracies, the Center for Security Policy and the Committee on the Present Danger—in a landmark case known as Boumediene v. Bush.

The U.S. Supreme Court ultimately decided against Bush in the case, ruling in 2008 that the Guantánamo prisoners had the right to challenge their detentions in an American federal court. The Wiley Rein brief that Anglin helped prepare had contended that the prisoners had no such right. In a news release, the firm broadly stated that “the court should not second-guess the considered judgment of the political branches in the exercise of their respective constitutional powers.” It was a deferential stance in much the same spirit as Nadon’s 2009 dissent on Khadr.

Gauging Anglin’s influence in Nadon’s selection is a matter of conjecture. The secretive formal process started with the federal government consulting with the Quebec government, the chief justice of Quebec, and the chief justices of the Federal Court and Federal Court of Appeal, as well as the Canadian and Quebec bar associations. A long list of candidates drawn up by officials working for the Prime Minister and justice minister was then handed over to a panel of five MPs, three from the governing Tories and one each from the NDP and Liberals. Those MPs then winnowed the list down to an unranked group of three candidates, from which the Prime Minister made his final choice.

The MPs are sworn to secrecy about their deliberations. How they arrived at the three names on the short list is not disclosed. But, after controversy erupted over Nadon’s eligibility, the New Democrats seemed anxious to distance themselves from him. On Oct. 28, a Bloc Québécois MP asserted in the House that the NDP and Liberal MPs on the selection committee must have approved of Nadon as one of the top three candidates. NDP MP Françoise Boivin wouldn’t let that stand. “We had to sign confidentiality orders,” Boivin said, “so we cannot disclose how the vote was held, and we certainly cannot assume that one or the other party voted in favour of the appointment of Mr. Nadon, just because his name was selected.”

That leaves open the possibility that Nadon was mainly, or even only, supported by the three Conservatives on the MPs’ committee. The influence on them of the PMO’s preferences, including Anglin’s input, could have been decisive. Harper’s press secretary declined to answer any questions about Anglin’s role. Whoever championed Nadon, the Prime Minister might well have been receptive to the case for a different sort of judge. After all, despite his five previous appointments to the Supreme Court, he’s lost a string of high-profile cases there, including the ruling last month that ordered his government to reform prostitution laws within a year. Before that, the Conservatives lost their bids to create a national securities regulator and to shut down Vancouver’s supervised injection site for drug addicts.

Ironically, the fact that Harper hasn’t prevailed on such prominent cases is often cited by experts as evidence that the judges he’s put on the court are admirably independent. University of Waterloo political science professor Emmett Macfarlane, author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role, calls them “moderate centrists.” On the other hand, he describes Nadon as a “very unique and odd choice.” And no matter how the court rules on his eligibility, those sitting judges must now worry about “the perception of the court’s legitimacy as an institution,” Macfarlane says. (Nadon was sworn in on Oct. 7, but isn’t hearing cases while his eligibility is decided.)

University of Ottawa law professor Adam Dodek says a far-too-rushed process left the court in this awkward position. Nadon’s nomination was announced on Sept. 30. Two days later, he testified before a hastily briefed parliamentary committee and, the following day, his appointment was finalized by Harper. “The rapidity of it shows that it’s not meant to be a serious vetting,” Dodek says. The serious part, as it’s turned out, has come later.

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